Saturday, March 29, 2008

It has been about a decade since the first batch of Senior Counsel (SC) were appointed by previous Chief Justice Yong Pung How.

If a recent series of articles on advocacy in the Singapore Academy of Law magazine, Inter Se, reflect the undercurrents of the legal fraternity, some serious reflection is taking place about the SC scheme.

When the scheme was launched, it was touted as being the equivalent of the Queen's Counsel (QC) scheme in England. In reality, it was Singapore's response to building a legal system independent from that of its colonial masters.

The Judiciary, taking into account the views of the Attorney-General and the Law Society of Singapore, has imposed conditions on a Queen's Counsel's appearance in Singapore, even if a QC is willing to represent a person on a pro bono basis in the face of an unwilling SC.

Today, the QC appears in the Singapore courts in very exceptional situations, often involving complex commercial transactions worth millions of dollars raising difficult points of law. This policy appears driven by pragmatism, since the QC based in England is more likely to be exposed to more sophisticated legal problems, in light of London's position as a premier financial centre.

But one can question if such exceptional situations should exist in the first place, when the SC was meant to be on equal footing with the QC.

With the recent announcement that foreign law firms will now be able to practise Singapore law and the fact that such foreign law firms tend to undertake complex commercial law, would it open the door to more such exceptional situations?

Ten years into the SC scheme, it may be fair to argue that it was unfair in the first place to compare the SC to the QC.

The QC scheme in England is now wholly different from what it was a decade ago.

Many changes have been made to the process of appointing a QC. It is no longer a political process but an independent and open one. The QC Selection Panel "comprises a retired senior judge, senior barristers, senior solicitors and lay (not legally qualified) members" and is "chaired by a lay member".

A potential applicant for appointment as QC is assessed for excellence in five areas:• Understanding and use of the law.• Oral and written advocacy.• Ability to work with others.• Understanding of diversity and cultural issues, and commitment to the promotion of equality of opportunity.• Level of integrity in dealings with court and all parties.

In essence, the position of QC is now the exclusive enclave of those who have distinguished themselves in practice, as opposed to just those politically favoured.

In the selection of an SC in Singapore, the Selection Committee — comprising the Chief Justice, the Attorney-General and the Judges of Appeal — uses a wider selection criteria.

Current Chief Justice Chan Sek Keong reflected on this at the opening of the legal year in January.

"In the past, we have focused on advocacy skills, legal knowledge and professional integrity as qualifying criteria for such appointments. For future appointments, we will also give consideration to the candidate's contributions to the law in the form of academic teaching, writing, research and committee work for the various law institutions, such as the Singapore Academy of Law and the Law Society, and the future Institute of Legal Education," he said.

Once appointed, beyond court work, the SC juggles additional "national service" roles of leading the profession, championing law reform proposals through the Senior Counsel Forum, and being an example through one's advocacy work to younger lawyers.

However, in recent years, this has become difficult. Some SC do less court work and take on other functions in their respective law firms in order to justify their value to these firms. Indeed, several SC juggle non-legal roles within their own law firms.

Thus, it was no surprise that the trend has prompted CJ Chan to recently consider setting up a committee to look into "regular reappraisal or reaccreditations of SC".

Perhaps, the committee will look into encouraging an SC — after he or she is appointed — to set up his or her own independent practice such that the person can stay focused on advocacy work.

For example, this is what Law Society president Michael Hwang SC did when he left his position in a top law firm to set up his own outfit. The move also freed him up to play a greater role in the Law Society.

An independent SC may also be in a better position to serve as mentor to younger lawyers with the interest to do advocacy work, irrespective of the law firms such young lawyers come from.

After all, not many SC are known to have translated into action the view of SC Harry Elias who says: "I would like the day to come when the phone rings, and someone says, 'My name is XYZ, I have a criminal matter, my client is so-and-so ... Can you please come and help on a free basis?' I would say 'yes'."

It is also a moot point if an SC should retain his status on the primary basis of the currency of his advocacy work. What about the number of young lawyers he trains that go on to distinguish themselves as advocates?

For example, it is no secret that SC Joseph Grimberg was instrumental in training several top advocates who helm various law firms or undertake other key legal roles today.

These factors should be taken into account when CJ Chan's committee looks into conditions that may be imposed for an SC to continue remaining an SC.

In the last 10 years, a unique position has been carved out for the SC in the Singapore legal system. That position can only evolve further.

Then, Minister Wong had to restore the flailing record of his Home Team, who were criticised for their complacency by no less than the respected founding father of independent Singapore, Minister Mentor Lee Kuan Yew.

Now, Minister Wong finds himself at the edge of a storm having to defend the independence of a Committee of Inquiry (COI) that he appointed to investigate the escape of Mas Selamat; of particular concern is the impartiality of a member of the Committee – a subordinate at the Ministry of Home Affairs (MHA), Dr Choong May Ling.

Minister Wong has sought to assure that the COI, including Dr Choong, will act independently because it comprises “persons who are not about to put their own considerable achievements and good reputations at risk”. He has declared that there are “no grounds to doubt the impartiality or independence” of the COI.

Naturally, some questions follow.

If one were Dr Choong, what would one do in the face of such concerns raised by the public?

Obviously, one would address them. It is imperative in such situations where one has been given an indisputable overriding duty to be accountable for one’s own actions.

Yet, Dr Choong, the eye of the storm and the civil servant who, according to Minister Wong at least, enjoys an independent voice remains pin-drop silent.

If one were Dr Choong, one would also ask: how well can the responsibilities, as outlined by Minister Wong, be carried out?

At the outset, it appears the expectations of the role evolved.

Minister Wong wanted the COI to “conduct a full and comprehensive inquiry” and to “do a balanced and thorough job”. No mention was made of the word “independent” in Minister Wong’s announcement of the COI on 2 March 2008.

As he did inform Parliament earlier that “an independent investigation is underway”, many interpreted this to mean that the COI would act independently.

Thus, to the criteria, Minister Wong had added one more – the need to be impartial or independent, which he confirmed on 16 March 2008.

Arguably, independence requires the absence of any nexus (whether professional or personal) to those being investigated.

The work of the COI will be wide. In Minister Wong’s words, the COI will be “given full and unfettered access to all documents, personnel, whether on open or classified appointments, as well as unrestricted inspection of the Whitley Road Detention Centre”, and will be “examining many witnesses from the lowest to the highest rank”.

The documents and witnesses could possibly include Dr Choong’s colleagues at the MHA and even the Minister himself.

Assuming one successfully manages to keep the nexus separate and the COI’s report arrives at the conclusion that the highest levels of MHA are worthy of criticism, would one be able to return to work, face one’s peers and still carry on with one’s work?

Consider the other extreme – a favourable report that may end up reinforcing the reservations expressed about the COI. This would clearly not be just to the other two members of the COI, who are as independent if not more.

If one were Dr Choong, would one ask Minister Wong to find someone else in light of these circumstances?

It is debatable that a replacement would only be necessary if the perceived conflict of interest could not be mitigated.

Minister Wong was right in defending and justifying Dr Choong’s appointment since he appointed her in the first place.

Minister Wong was also right in disclosing Dr Choong’s relationship to MHA: “she oversees security policy”.

In mitigating the potential conflict of interest, Minister Wong merely had to satisfy himself that the task could be performed by Dr Choong at a reasonable standard of ethics and professional conduct. He has confirmed that she can do so.

Nevertheless, if one were Dr Choong, would one simply accept such a standard or would one uphold a higher standard personally?

The role of a member of the COI is akin to the role of a director holding a position on the Audit Committee of the Board of Directors, where one is expected to be whiter than white in upholding the interests of both the company and its stakeholders; and where one, as a compass, sets an example for others to follow.

Resultantly, unlike other directors, an Audit Committee director is expected to personally uphold the highest standard of ethics and professional conduct, even though legally the director’s duty is less onerous.

If such a director is found in a position of a conflict of interest, the director would simply not accept that the perceived conflict of interest has been mitigated or addressed by the person responsible for his appointment.

The director, in being an example to others for the avoidance of any semblance of partiality or bias, would observe the highest standard required in such situations. The director would more appropriately recuse himself, whilst giving due respect to the person who appointed him.

Yes, if one were Dr Choong, one would not be silent to public concerns; one would appreciate the evolving expectations entailing one’s role; and one would, in observance of the highest standards of ethics and professional conduct, recuse oneself.

Tuesday, March 18, 2008

In recent years, there has been an increase in the circulation of commuter newspapers in Singapore.

What happens often at the end of a journey is that a person throws the newspaper in litter bins. Such bins are available easily at train stations or bus interchanges.

This is unfortunate because it encourages irresponsible social behaviour.

Operators of these stations and interchanges should consider providing recycling stands or areas for these newspapers. Others will then be free to pick up these newspapers and further benefit from the information in these publications.

At the end of the day, the newspapers could be sold to recycling companies. In that process, public transport operations will gain an additional revenue stream.

The National Environment Agency and Media Development Authority can facilitate the realisation of this idea as a public-private sector initiative.

Thursday, March 13, 2008

SPEECH DELIVERED AT ‘DAVID MARSHALL – HIS LIFE AND LEGACY, A SYMPOSIUM IN COMMEMORATION OF THE 100TH BIRTHDAY ANNIVERSARY OF MR DAVID MARSHALL’ AT RAFFLES CITY CONVENTION CENTRE ON 12 MARCH 2008.

INTRODUCTION

When I first learnt that I was to speak after the son of our late President C V Devan Nair and before the wife of our late Chief Minister David Marshall, you can only imagine how nervous I was!

I admire both politicians. They remain important pillars of Singapore’s short history in that they debunk the perception that independent Singapore is the creation of one man.

Both these politicians and their families have sacrificed a lot for the glory of our country. As a representative of a whole generation of Singaporeans that gained from such sacrifices, I can only be grateful. In appreciation of this, let’s give them a round of applause.

BACKGROUND

Today, we come together to honour the legacy of one of them, David Saul Marshall.

I first heard of David Marshall from my late grandfather. My grandfather was somewhat concerned that we were growing up on one-party-sanctioned versions of Singapore. It was important for him that we should grow up with a better sense of the history of Singapore. Thus, it was only natural for him to share about David Marshall.

Later in life, I gained entry into St. Andrew’s Junior College, where I learnt more about David Marshall. Around that time, I also read Chan Heng Chee’s biography of David Marshall.

In early 1994, I sought and got the opportunity to meet and interview David Marshall. On 8 August 1994, I met him for the second and last time, where current Straits Times journalist Natalie Soh and I hosted him at the David Marshall Forum in St. Andrew’s.

If I were asked to describe what I learnt from and about David Marshall, I will use one word: love.

Borrowing the style of Professor Tommy Koh, who encourages others to make three points, and to illustrate this further, I’ll tell you about the three lovers of David Marshall. Of course, no offence meant to Mrs Marshall, his ultimate lover.

LOVER #1: STORIES

The first thing that immediately struck me about David Marshall was how much he loved his stories. He used effectively stories from the pages of his life to underscore what he stood for.

On both the times I met him, he shared the story about how one day he was walking down the corridors of St. Andrew’s and saw a Chinese boy being bullied by a non-Chinese boy. The latter was referring to the former as a “Chink, Chink, Chinaman”. David Marshall taught the bully a lesson there and then.

I remind myself of this story when I am in fear of something; or when I am having second thoughts about whether I should stand up for something that I feel is important.

LOVER #2: LAW

David Marshall loved the law immensely, even though he shared it was something he found by accident.

Law was and remains my first love. I wanted to be a lawyer since the age of 14. When I met Marshall at 17, he only reinforced my desire to be a lawyer.

It is also interesting that out of the 3 of us, who interviewed David Marshall, 2 of us eventually became lawyers. A fourth person - who was meant to be at the interview but could not make it due to illness - read the transcript and also became a lawyer.

As interestingly, we took heed of Marshall’s advice that the Criminal Bar is a very frustrating place today, and so all of us are commercial lawyers.

The law is one profession where you can make a measurable difference to the lives of people. The law enables lawyers to give back to society by simply doing what they do best. David Marshall showed that in his work.

LOVER #3: SINGAPORE

David Marshall was, to me, a fine example of what it means to be Singaporean and to love Singapore.

We know that he was very critical of the ruling party and its leaders. We also know he had his own ideas about justice and governance. A Singapore under the leadership of David Marshall would possibly have been more humane.

But he gave credit where credit was due. For example, he was humble enough to acknowledge that a Singapore led by him would perhaps have been less progressive.

Nevertheless, he did not let his differences with the then elected leaders of this country come in the way of him acting in the interests of Singapore and in the service of our country.

David Marshall showed cynics that you can be a contrarian in Singapore and still live a life of dignity.

Indeed, through his public service, he distinguished himself as a concerned and valuable citizen of Singapore.

CONCLUSION

The legacy of David Marshall is that he was a true lover. David Marshall loved stories. David Marshall also loved the law. Above all, David Marshall loved Singapore.

David Marshall inspired me to do the same. And I hope you will go home today to find, to celebrate and to share that love and happiness in your respective lives. Have a great evening!

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This blog is personal.
Nothing in this blog is meant to substitute professional legal, financial or other advice. Please seek such advice independently! Dharmendra Yadav is presently a corporate counsel in a financial institution. Contact him by e-mail dpyadav {[at]} yahoo.com